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Tuesday, August 12, 2008

Presidential Debates and the Judge-as-Umpire Analogy

The Presidential Debate Blog is an interesting discussion site created by three law students (all of whom debated in college). In a recent post, editor Aaron Zelinsky discusses a recent call by Newt Gingrich and Barry Casselman for a series of open-format debates, under which the candidates question one another directly and the moderator simply keeps the conversation "moving and orderly," but otherwise remains in the background. Gingrich points to a debate he did with Mario Cuomo in 2007, moderated by the late Tim Russert, as a model. Aaron relates the role of the moderator in this format to the recent discussions about judges as umpires. Two quick thoughts on Aaron's post.

First, to the extent the judge-as-umpire analogy ever works (which I doubt, but well), this would be the one situation in which it does. Under this model, the moderator is the equivalent of a judge presiding over a trial, allowing the parties/attorneys to make their cases and convince the finder-of-fact; the judge simply is keeping the parties within certain boundaries of time, style, and perhaps content, but otherwise staying out of the picture. This is precisely what Marvin Frankel had in mind back in 1975 when he described the "umpireal view" of the judicial role in trial and pre-trial processes. The moderator/judge simply regulates the process of adversary confrontation, but ultimately lets the candidates/litigants do the work. Of course, this does not entirely remove the inherent subjectivity of judging/umpiring/moderating, but it is a different sort of decision making than what Chief Justice Roberts seemed to be driving at.

Second, Aaron points to Charles Gibson's performance during the notorious April Democratic primary debate as an example of what moderators (and judges) should not do. He specifically notes the criticism that Gibson had appeared too "prosecutorial." As a political junkie and an Obama supporter, I am not inclined to defend Gibson's performance in that debate. But I am going to.

Gibson actually did precisely what a moderator was supposed to do, given the format of that debate. The moderator was not supposed to remain in the background and let the candidates run the show--he was supposed to control the debate, ask the candidates questions, and push the candidates on their responses. He was acting as a judge, but the debate was modeled on an inquisitorial/non-adversary model of trial, in which the judge controls the action and asks pointed and confrontational questions to whic the parties react. In this format, Gibson was supposed to be "prosecutorial." The problem with Gibson's performance was the substance of the questions he asked, when he spent 45 minutes on nonsense like lapel pins, the Pledge of Allegiance, and who is more patriotic than whom.

Now, the move seems to be away from this model of debate and to something more like the Town-Hall Meeting (McCain's favored model) or the Lincoln-Douglas Model (Obama's favored) or the trial model or whatever we want to call it--probably because people are beginning to see that it makes no sense to put the media/moderator/judge at the center of the action. And I probably agree with that. But do not blame Gibson for the debate format chosen; blame him for the horrible way he executed his assigned role.